Opinion of the Court.

AARON J. KELLOGG, v. FORDYCE COWING, and THE COMMERCIAL BANK OF ALBANY, V. FORDYCE COWING.

JUDGMENT by confession had been entered in the first above entitled cause upon the following statement of facts: "This confession of judgment is for a debt justly to become due from me to the above plaintiff (Aaron J. Kellogg), on or about the 15th day of December, 1859, and the following are the facts upon which said indebtedness arises. The plaintiff had been in the employ of the defendant for several years upon a salary. From year to year defendant had settled with plaintiff, allowing him interest upon such amount or amounts as remained unpaid. That on the 15th day of December, 1857, the plaintiff and defendant settled, and there was then due to the plaintiff four thousand and three hundred dollars, for which sum defendant then gave his note payable in two years with interest; that the amount of said note with interest, on the 15th day of December, 1859, will be the sum of four thousand nine hundred and two dollars; and no payments have been made on the said note, or the interest thereon." This statement was duly verified. The assignee of the plaintiff in the second above entitled actions, at Special Term, moved to set aside the judgment on the ground of the insufficiency of the statement under the requirements of the second clause of section 383 of the Code, which motion was granted; but on appeal to the General Term, the order setting aside the judgment was reversed, and an appeal was taken to this court.

HELD, that the foregoing statement embraces substantially all the facts essential to sustain the judgment, and that the judgment of the General Term be affirmed.

Statement of case.

IRA M. INGRAM v. JOHN J. ROBBINS.

Judgment, December 14, 1859, $2,560.66. No. 1.

IRA M. INGRAM v. JOHN J. ROBBINS.

Judgment, December 14, 1859, $1,117.35. No. 2.

JOHN H. MATHEWS and CORNELIUS S. MITCHELL V. JOHN J. ROBBINS.

Judgment, December 16, 1859, $1,020.73. No. 3.

The legislature, in requiring the statement of facts accompanying a judgment by confession to be properly verified by the oath of the party, intended that in so far as it related to things within his own knowledge, he should affirm it to be true.

Where the party only swears that he "believes the above statement of confession is true," the affidavit is insufficient, and the judgment, if entered thereupon, will be vacated.

To allow parties to adopt a form of words less binding upon their conscience than a direct affirmation, would weaken the safeguards which the law has provided, and therefore will not be allowed.

MATHEWS and Mitchell, the plaintiffs in the last judgment (No. 3), made a motion to vacate and set aside the other two judgments and the executions thereon, on the ground that they were fraudulent and void.

The court, at Special Term, made an order, dated February 1, 1860, denying the motion as to the second judgment (No. 2), and reducing the amount of the first judgment to $1,960, and declaring it to be a valid lien for that amount.

On appeal to the General Term, this order was affirmed with costs, and opinion delivered by Justice PECKHAM.

The judgments in favor of Ingram, who is a brother-in-law of Robbins, were entered on the 14th December, two days before the judgment in favor of Mathews.

The Mathews cause was on the calendar for trial, and was, on 7th December, 1859, ordered to be tried on the 16th December, 1859, on which day an inquest was taken. In the TIFFANY.-VOL. VI. 52

Arguments for Appellants.

meantime, and on the 14th December, Robbins confessed the two judgments to Ingram.

Judgment No. 1 was authorized to be entered for $2,560.66, which it was claimed was the amount of ten notes alleged to have been indorsed by Ingram for Robbins. The amounts of two of these notes (Nos. 7, 9) were omitted in the statement. The other notes amounted to $1,960, of which only $875 were due at the time of the judgment.

The objections to this judgment were: 1. That the statement was not properly verified. 2. That the notes specified amounted only to $1,960. 3. That it did not appear that the notes, or if any, which of them, have been disposed of by Robbins, so as to render Ingram liable on them. 4. That five of the notes had become due before the judgment, and it did not appear that Ingram's liability as indorser had been fixed.

Judgment No. 2 was recovered for the amount of three notes made by Robbins to Ingram, for certain considerations expressed.

The only objection to the judgment, is the want of a proper verification. Several of the objections originally made to these judgments have been disposed of by intermediate decisions of this court.

The objection to the verification of the statements on these judgments seems to have met the favorable consideration of the General Term, which, however, overruled it, in deference to the decision in the fourth district, in 21 Barb., 91, in regard to which Judge PECKHAM, in his opinion, says: "Though differing with the learned court in the fourth district radically, I yield to the authority of those decisions."

John E. Burrill, for Mathews and Mitchell.

I. The affidavit of Robbins, that he believed the statement to be true, was not a sufficient verification, under the 383d section of the Code, which is in these words: "A statement in writing must be made, signed by the defendant and verified by his oath." (Code, § 380; Op. PECKHAM, J., case, 26.)

1. "To verify" is stated to be "To prove to be true."

Arguments for Appellants.

When the verification is by writing, it must be by affidavit, and "to make affidavit of a thing is to testify to it upon oath." (Burrill Law Dic., title "Verification and Affidavit ;" 3 Bl. Com., 304.)

2. It cannot be said that a thing is proved to be true by a statement of the belief of a witness in regard to it.

3. If it be conceded that an indictment for perjury would lie on an affidavit made on belief which is not certain, still the evidence to justify conviction would be far different from that which would be required were the statements made positively and upon knowledge.

4. The object of the Code, in requiring these statements to be verified, was, as far as possible, to prevent the recovery of fraudulent judgments, and such verification was required to be made by the debtor, for the reason that it was fair to suppose that he had better knowledge than any one else in regard to the matter. (13 How. Pr., 21.)

5. Where the subject matter of the affidavit or deposition is peculiarly within the knowledge of the deponent, and is capable of personal or positive knowledge, the debtor ought to be compelled to testify positively in regard to its truth.

6. It was the intention of the codifiers that all affidavits of verification, except where limited and qualified, should be made on positive knowledge. (Code, § 157, verifications generally; 158, verification of accounts; Roberts v. Willard, 1 Code R., 100, where Judge GRIDLEY held that an affidavit made "on belief," under § 208, was insufficient.)

7. It has been repeatedly held under the statutes relating to attachments, injunctions, arrest, and service of summons by publication, that the affidavit must be positive; in all cases where the matters are within the personal knowledge of the deponent, they must be stated positively; and that when a statement on belief is tolerated, as in cases where the intention of a party is in question, then it must be accompanied with affidavit of the facts..

II. The statement on which judgment No. 2 was entered did not, on its face, purport to establish an indebtedness for the amount for which judgment was entered, and the judg

Arguments for Appellants.

ment was void, and the court had no power to declare it to be a valid lien for the sum of $1,960, to which it was reduced by the order appealed from. (Hopkins v. Nelson, 24 N. Y., 518; McDowell v. Daniels, 38 Barb., 143; Durham v. Waterman, 17 N. Y., 9; Van Beck v. Sherman, 13 How. Pr., 472; Winnebrenner v. Edgerton, 30 Barb., 185; Clements v. Gerard, id., 325.)

III. The plaintiff was not authorized to include in judg ment No. 2 the four notes (2, 6, 8, 9) mentioned in the statement, which were past due at the time of the judgment.

1. There was no proof that they were then held by third. parties, or were not in the possession of the defendant.

2. It was not shown that the plaintiff had been charged as indorser thereon.

3. In point of fact, the statement did not show that there was any liability of the plaintiff in regard thereto.

4. An action could not have been sustained by the plaintiff against Robbins, to recover that amount.

IV. Even if the judgment No. 2 was not wholly void for the reasons mentioned, still the plaintiff had no right to collect under it any more than was actually due, and the execution should have been set aside, or the amount reduced so as to cover only the amounts of the judgments, less the three notes, whose amounts were not specified, and those which were past due at the time of the entry of judgment thereunder, and on which the plaintiff's liability as indorser never attached or was discharged.

V. The validity of the judgment must be determined by the sufficiency of the statement on which it was entered, and could not be sustained by affidavits read in opposition to our motion.

If such affidavits were available to the plaintiff, it should be upon a motion made by him to correct or amend the judgments, in which case the opposing creditor would know what case he was called upon to meet, and have the oppor tunity of procuring evidence to do so.

VI. The judgment should be vacated, as against the plaintiff, on the third judgment, and the orders modified accordingly.